360 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
so happens that we have in our country some four High Court Judges who were on the date of the Constitution, Judges of Certain High Courts but were not citizens of India. They chose to remain at their posts and did not retire. We were therefore bound to carry them over under the provisions of article 376. A question has arisen and it is this. Can such a person be appointed as a Chief Justice either in the Court in which he is serving or in some other Court ? Another question that has arisen is this. Can such a Judge be transferred to another High Court, the point being whether the appointment of a Chief Justice or the transfer of a Judge from one High Court to another High court is a new appointment ? If it is a new appointment, obviously the provisions of article 217(2) would apply. This was felt as a great difficulty, because it could not be presumed that parliament intended merely to continue them but their prospects should be blocked. Such evidently was not the intention. Consequently the President under the powers vested in him under article 392, clause (1) for the purpose of removing difficulties, issued an order regularising the position. That order in some quarters has been questioned as being outside the power of the President, there being no defficulty whatsoever. In order to remove these doubts it is thought better to make a provision in the Constitution itself and that is why clause 13 is included in this Bill.
Mr. Chairman: Will the Hon. Minister explain why was not originally the transfer contemplated ? Is it not a new situation created by this clause ?
Dr. Ambedkar: That is what I interpret to be the intention of article 376 viz., that once they were carried over, they were carried over for all purposes, either transfer or promotion.
But some people have found this difficulty ……
Pandit Thakur Das Bhargava: The idea was that the Chief Justice shall not be a non-national. What is the reason now ?